ONE TOWN SQUARE: at the intersection of peak oil, climate change, and land use

The Sierra Club won a stunning legal victory Thursday (November 13), blocking the Environmental Protection Agency from issuing a permit for a proposed coal-burning power plant in Utah without addressing global warming impacts. The EPA Environmental Appeals Board held that the EPA’s Denver office failed to adequately support its decision to issue a permit for the Bonanza plant without requiring controls on carbon dioxide.

The decision may well stop all new coal plant permitting while the EPA rethinks how the Clean Air Act is to be used to control carbon dioxide. That won’t happen until after the next administration takes office. In the meantime, all permits in the pipeline are stymied. The decision could affect permits for oil refinery expansion as well.

The Sierra Club argued that the EPA’s permit decision violated CAA sections 165(a)(4) and 169(3) by failing to apply “BACT,” or best available control technology, to limit carbon dioxide (“CO2”) emissions from the facility. The argument rested on the Supreme Court’s decision in Massachusetts v. EPA, in which the court ruled that CO2 is an “air pollutant” under the Clean Air Act. The Board remanded the permit for the EPA to reconsider whether to impose a CO2 BACT limit and to develop an adequate record for its decision.

A copy of the decision can be found here.

The significance of the Deseret Power Electric Cooperative decision cannot be overstated. As Joseph Romm reiterates at Climate Progress, the single most important policy measure the rich nations must embrace as soon as possible is to stop building coal plants without carbon sequestration. This ruling will accomplish that in the U.S., at least for a while - and it could give the Obama administration the opportunity to get serious climate legislation passed, which is crucial to getting serious international action on climate.

We’re going to have to replace all of the world’s existing coal plants with either CCS plants or zero carbon alternatives - and sooner rather than later - if we’re to get atmospheric CO2 back down to the 350 ppm necessary to minimize the risk of runaway global warming.

The Sierra Club’s press release is below the fold. Read the rest of this entry »

Recall last year that the Court of Appeals threw out an administrative rule [OAR 660-033-0030(5)], which prohibited counties from considering “gross farm income” when identifying agricultural land. The Oregon Supreme Court, in its infinite wisdom, went one step further, holding that “LCDC may not preclude a local government . . . from considering “profitability” or “gross farm income” in determining whether land is “agricultural land” because it is “suitable for farm use” under Goal 3.” Wetherell v Douglas County, 342 Or 666, 160 P3d 614 (2007).

We feared at the time that the door was now open for people who wanted to develop rather than farm their land to argue “I can’t make a profit, so my land is not farm land and I ought to be able to subdivide it and build houses.” The outcome of a case that’s now before LUBA may tell whether that fear will be realized. Friends of Douglas County’s Shelley Wetherell is mounting a stirring defense. The briefing is finished, and oral arguments await.

Developer Garden Valley Estates LLC is out to subdivide and build houses on 259 acres of farm land - land which as recently as 2005 was part of an historical and still operating 590-acre livestock ranch and which continued to support livestock grazing up until 2007.

Independent Thinning Inc. - a business offering logging and well drilling services - bought the 590-acre property in 2000 and soon initiated plans to divide and develop the property as the Indy Ranch Development Project. The 590-acre property was carved up into three parcels in 2005, including the 259-acre subject property.

The 590 acres sold for $1,678/acre in 1995. Independent Thinning paid $2,250/acre in 2000. In 2006, 259 acres of the original 590 acres were sold to Garden Valley Estates LLC for $10,980 per acre.

This is the perfect recipe for proving that farm land isn’t really farm land under a “suitability” standard that allows for profit or income to be considered: pay far more for the land than the land is worth at farm value, then complain that you can’t make a profit because of the costs of paying off the purchase.

I suppose the good news is that here in Oregon you still have to make a showing that land isn’t farm land before developing it.

Gene Logsdon in an article titled “What’s Organic Farmland Worth? Or Is It A Pearl Without Price?” at OrganicToBe.org reports:

“A cash grain farm in the cornbelt sold recently for an eyebrow-raising price just shy of $9000 an acre. It sold for farmland, not industrial development.”

He asks, how corn and soybeans pay for such high-priced land? His answer? They can’t.

“We could be looking at a possibility of what one farmer I talk to a lot calls ‘instant bankruptcy.’”

He observes that farmers who pay that kind of money for land are betting on betting on high commodity prices. They are speculating on future expectations, the same way the paper money market has been doing.

We have accepted the notion that land is a commodity to be bought and sold like paper on the stock exchange, and a financial asset on which we’re entitled to a satisfactory return on investment. As Logsdon says:

“This has led to at least two bad results in addition to high risk speculation with something more precious than paper -  our food supplies: 1): Poorer people can’t afford to buy farmland so farms slowly become the property of an oligarchy of the rich; 2): To make a “profit” even rich people must farm for quantity not quality and then the land deteriorates.”

- and to a third result which Logsdon doesn’t mention: rich people (or people who aspire to being rich) must develop the land rather than farm it, without regard to our food supplies.

Logsdon tells a story about asking a “contrary farmer” why he didn’t sell out and live at ease for the rest of his life, which he could have done especially since he was happy to live modestly. The farmer paused a little and then answered.

“My farm is not for sale at any price. It is my life. And what would I do with all that money, stick it in my ear?”

Resources like oil and farmland are limited. When real resources start to run out, the fake wealth generated by our financial system won’t feed us.

Once we shake out the speculative element in farm land pricing, what’s farm land worth? Here’s Langsdon’s appraisal methodology:

“a farm will be priced by how much health and happiness it produces.”

LUBA this week remanded Coos County’s approval of a conditional use permit for the Jordan Cove Energy Project (JCEP) LNG facility on the North Spit of Coos Bay.

The proposed facility would  include three main components: (1) a marine terminal (including docking slips, berthing facilities and access channel to the Coos Bay deep-draft navigation channel, a LNG import terminal (including an unloading system, a storage system, energy generation and regasification facilities); and (3) a pipeline to convey the regasified natural gas to its destination. The remanded decision involved only the LNG import terminal facility only.

LUBA’s order requires Coos County to revisit three issues:

1. Whether the development would impact wetlands as shown on the county’s adopted and acknowledged inventory maps.  The county claims its official maps had been “lost or destroyed,” and instead relied on a wetland delineation prepared by the applicant.

2. Whether Native American cultural and archaeological sites would be adequately protected.  An archeological survey and historic records indicate that the project area may contain one or more site. The county’s comprehensive plan requires that the Coquille Indian Tribe and Coos, Siuslaw, Lower Umpqua Tribes to be notified, provided with a site plan, and given the opportunity to participate in the preparation of an acceptable protection plan including a public hearing to resolve any disputes. LUBA held that the county improperly deferred the preparation of a protection plan to a later stage that did not ensure provision of a public hearing on the protection plan if disputes arose.

3. Whether comprehensive plan policies regarding waste and storm water and weak foundation soils apply and, if so, whether they are met.

LUBA’s opinion is available here.

The Capital Press reports that Umatilla County wheat farmer Robert Klein “is at the front lines of a land-use dispute that will shape the future of the area outside Milton-Freewater.” He and two other local property owners are appealing a county land use decision allowing the hillside owner, Seven Hills Properties, to subdivide its 1,681 acres into 40-acre parcels.

Umatilla County’ EFU zone has a 160-acre minimum lot or parcel size. The smaller 40-acre size would be allowed as a LCDC-approved “go-below.” State law allows counties to establish smaller minimum lot or parcel sizes - “go-belows” - in EFU land if they can be shown to be consistent with existing commercial agriculture in the area.

Klein argues that forty-acre  parcels for wine grapes and 160-acre wheat parcels are not compatible. The developer’s plan is to build “estates” on each of the 40-acre parcels. The homeowners would then lease the vineyard land back to the vineyard operator.

The challenge now is before the Oregon Court of Appeals. A hearing is scheduled for mid-July. As there are no statutory deadlines for a case that gets to the Court of Appeals other than via   LUBA, it’s difficult to predict when the court’s decision may be forthcoming.

In the meantime, the economic forces pushing for the conversion of the land from wheat farming to prestige homesites have weakened. The market for homesites far from urban areas has collapsed as a result of the mortgage meltdown and high gas prices. And the price of wheat keeps rising, as is the value of the land for wheat farming.

Goal One Coalition helped prepare the case and Goal One associate director and staff attorney Jan Wilson is representing appellants.

The Eugene Register-Guard has also published the same article about the go-below.

The Court of Appeals has affirmed a LUBA decision holding that the right to complete a subdivision approved pursuant to a Measure 37 claim expires with the death of the claimant.

In this case, the property owner obtained Ballot Measure 37 “waivers” of applicable state and local land use regulations and then filed an application with Jefferson County to develop the property. While the application was pending, he died. The petitioner was appointed the personal representative of the estate and pursued the Jefferson County development application, which the county granted.

DLCD appealed the application to the Land Use Board of Appeals (LUBA), arguing that petitioner cannot claim the benefit of the Measure 37 waivers because he was not the owner of the property at the time the waivers were obtained. LUBA agreed.

Petitioner then appealed to the Court of Appeals, which affirmed LUBA’s decision. The reasoning in the opinion in DLCD v. Jefferson County (A138022, June 18, 2008) is different and stronger than LUBA’s.

Read the rest of this entry »

A Clackamas County circuit court judge halted development of a 41-home subdivision Thursday in one of the first rulings to clarify when developments have “vested” under Measure 49.

Senior Judge Timothy P. Alexander acknowledged that developers had “in good faith” spent nearly $1.3 million on the project, which was approved in 2005 under Measure 37, then disallowed two years later under Measure 49. But that wasn’t enough to “vest” their right to complete the subdivision. The judge found the total cost to complete the subdivision infrastructure and to build 40 homes would exceed $30 million - giving a ratio of 1/23, for purposes of the Holmes analysis.

The judge also explained that the work done so far could be used for the three homes that would be allowed under Measure 49. The owners had acquired the property in 1969.

The judge did hold that the owners had proceeded in “good faith” in continuing work after the legislature had put Measure 49 on the ballot, saying:

“Anyone who claims to be able to predict the outcome of a ballot initiative in Oregon should buy a Megabucks ticket. It was reasonable for plaintiffs to continue with development until Measure 49 became law.”

The court’s opinion is available here.

Crook County voters on Tuesday passed a resolution to remove the destination resort map from the county plan. Repealing the map would effectively prohibit new destination resorts. The vote was 4400 to 2230. Repeal garnered a resounding 66.4% of the vote. A copy of Measure 7-47 is available here.

The county argues that Measure 7-47 is only an advisory opinion measure to remove the current resort overlay map, which designates where a resort can be built. If the county’s position is correct, the county court will now have to decide whether or not to hold a public hearing process to remove the overlay map. Proponents believe that the measure does remove the overlay map from the comprehensive plan.

Resort opponents voiced two main concerns: not having enough water to support current residents and agriculture, and the thousands of homes and rental units resorts would bring into the area. Ranchers object to irrigation water now used to grow hay to feed cattle would be diverted for golf courses, and worry that increased traffic could interfere with the moving of farm equipment and livestock. Cattle are often moved around on public streets and county roads.

There have been more than 10 new resorts in the past decade, most in central Oregon, according to the state, and more are set to come online or are in the early planning stages. Four additional destination resorts have already been approved in Crook County. Brasada Ranch is under construction, while Remington Ranch, Hidden Canyon and Crossing Trails have yet to break ground. Crossing Trails near Powell Butte was the straw that led to the revolt by Crook County ranchers and farmers.

Originally envisioned as magnets for tourists and engines of economic development in remote areas, newer resorts are being built for and marketed as high-end residential development.

A flood of “vested rights” applications is beginning to inundate counties around the state, almost none of which should be approved. Regardless, it looks like counties will be rubber-stamping them. Counties where that’s already happening include Crook, Benton, Douglas, Hood River, Jefferson, Marion, and Yamhill.

This tsunami of unjustified approvals threatens to leave behind a residue of rural sprawl splattered across Oregon’s landscapes. We’ll be left with housing infrastructure we’ll be living with for many decades, in a development pattern that is unsustainable as peak oil brings skyrocketing oil prices and transportation costs. Worse, this rural sprawl ensures that the carbon emissions from enforced driving will continue to grow, adding fire to the global warming that threatens our very existence.

Heading off this flood is far beyond the resources of Goal One and our allies. Goal One has sent this letter to Richard Whitman, Director of the Department of Land Conservation and Development, pleading that the state fulfill its responsibilities and take action to ensure fair and uniform application of vesting law. A copy of the letter was also sent to Governor Kulongoski.

Dear Director Whitman,

Five months after the voters of Oregon overwhelmingly approved Measure 49, it is becoming increasingly clear that local governments’ and particularly counties’ handling of vesting issues threatens to undermine the integrity and the effectiveness of the measure.

Monitoring and, when necessary, challenging local governments’ handling of vested rights applications is simply too overwhelming a task for concerned neighbors and organizations with limited resources. Review and challenge of each case requires hours of attorney time and careful review of the distinct set of facts in each case. We beseech DLCD to intervene quickly and decisively to prevent hundreds of vested rights applications from being approved where approval is not warranted.

As of April 15, at least 129 applications for vested rights determinations have already been filed statewide. Many more will follow. Some counties have already begun making vesting determinations, and the early results are disturbing. The spreadsheet prepared and distributed by DLCD indicates that only four vested rights applications statewide have been denied out of the 42 that have been decided so far.

Read the rest of this entry »

Ken Levenson at Climate Progress observes that despite the horrific ramifications of climate change, our progress in combating it is dangerously slow - “retarded by an inertia composed of mighty fossil fuel interests, our wanton personal habits, an indifferent press and short sighted political leadership.”

James Hansen insists that coal plant construction must be halted and that all existing coal plants be shut down - ominously, no later than 2030.

A moratorium is what is required. Levenson points out the mechanism for getting such a moratorium at the requisite global scale is lacking. He suggests a Coal Power Non-Proliferation Treaty.

Last week the Land Conservation and Development Commission adopted “housekeeping” amendments to the Goal 4 Forestry administrative rules in OAR chapter 660 division 6. The amendments tighten up the way forest capability is determined.

The amendments fix a problem with the OAR 660-006-0005 definition of “cubic feet per acre per year.” The definition also set forth the “alternative method” that must be used if NRCS data wasn’t available or if a property owner wasn’t happy with published data. Unfortunately, LUBA held in a 1998 LUBA decision in ODOT v. Coos County that the definition applied only in the context of “template” dwellings, and not to nonresource and marginal lands cases.

All was not lost, as OAR 660-006-0010 still required that forest lands be inventoried using a “mapping of forest site class” - which in turn relies on a determination of capability measured in cf/ac/yr. But nevertheless the definition didn’t apply, and LUBA had held in a string of cases that as long as whatever data was relied upon was produced by somebody claiming to be a forestry “expert” and was expressed as “cubic feet per acre per year,” the data was “substantial evidence” that a county could rely on in reaching a decision. LUBA refused to look beyond the results into the substance or validity of the methodology employed. As a result, any landowner who so desired could find a for-hire forestry expert to prove that his forest land was “nonresource” or, in Lane County “marginal.”

The new rules insert the phrase “cubic foot per acre” in the inventory requirements - so now the definition of “cubic foot  per acre” applies directly.  Also, a new subsection (3) of OAR 660-006-0015 specifically requires that a redesignation of land to a nonresource designation be based on a determination of potential productivity measured as cubic foot per acre per year.

To get at the methodology problem, the definition of “cubic feet per acre” was amended to specify acceptable sources of productivity data. If a property owner wants to use other data, the definition specifies that the methodology to be used is that laid out in the Oregon Department of Forestry’s Technical Bulletin entitled “Land Use Planning Notes Number 3 dated April 1998” - and that results be approved by the Oregon Department of Forestry.

The rule amendments thus will have two critical real-world consequences.

1. The bulletin explains the method that must be used to compute or measure the ‘equivalent data’. The subject of the sentence is ‘an alternative method’ - it is the alternative method used to get the cu/ft/ac data that is in question; and
2. ODF must now approve this. It is up to ODF to sign off rather that a county deciding if the method is correct or the data “equivalent.” ODF actually wanted the sign off to avoid the shore pine problem that occurred in Lane County in the Carver case.

These important amendments are the culmination of several years’ work by Goal One Coalition.

The full text of the amendments is provided below the fold. Read the rest of this entry »

The Court of Appeals has reversed LUBA’s decision in Hildenbrand v. City of Adair Village.

While LUBA had sent back the decision approving a 142-acre expansion of the Adair Village UGB, LUBA’s order was based on a narrow and minor issue that probably could easily have been fixed on remand. Not satisfied with the scope of their win at LUBA, petitioners appealed to the Court of Appeals.

Petitioners’ winning argument was that the city had taken in too much land because of the way they calculated “need.” While the comprehensive plan sets a goal of achieving an overall average lot size of 6,000 square feet, the city had calculated the amount of land needed by assuming that the new lots would all be 6,000 square feet. Petitioners argued that the city’s comprehensive plan requires that new lot sizes be smaller than 6,000 square feet because the city had historically been developed at very low densities, with lot sizes averaging ~13,000 square feet. Thus the city’s decision would result in failing to meet or even approach the comprehensive plan’s goal of a 6,000 sq. ft. average lot size.

The Court of Appeals agreed that the city had failed to adequately justify the assumed lot sizes:

“The necessary justification under Goal 14 of the quantity of land to be added to the urban growth boundary requires a projection of likely development under the densities allowed by the city’s high-density residential zoning, the R-3 zoning district, rather than the local governments’ assumption that all development will occur under the lowest density permitted by that zoning. That unsupported assumption does not constitute substantial evidence of a “demonstrated need” under Goal 14, and the board’s conclusion to the contrary is unlawful in substance.”

Goal One Associate Director and Staff Attorney Jan Wilson represented petitioners and briefed and argued the case.

San Francisco is considering doing away with some laws that force development to accommodate cars and that require city dwellers to subsidize auto ownership.

Board of Supervisors President Aaron Peskin has introduced legislation that would eliminate required spaces for certain developments in the city’s denser neighborhoods and prohibit the cost of a parking space to be included in the cost of a condominium unit in large developments.

The ordinance would remove the minimum requirement of one parking space for every four units in housing projects for seniors and physically handicapped people, below-market-rate housing, group housing projects, residential-care facilities and single-room occupancy units.

The legislation would also force the “unbundling” of parking spaces in housing developments of 10 or more units, prohibiting the cost of a parking space from being included in the cost of the condo unit.

The legislation also encourages developers to employ more “space-efficient parking” by lifting the requirement of independently accessible parking, where each parking space has its own stall accessible by the driver of the car, to allow for such things as mechanical car parking or valet parking.

The proposed ordinance is a tentative step in a new direction. Can you imagine forging a new alliance among progressive land use and social justice activists; conservative property rights advocates and political libertarians; and the development community - retailers and commercial developers, industrialists, homebuilders and realtors - to further a program of removing restrictions that require expansion of our road systems and accommodation of the auto in residential, commercial, and industrial developments?

The Land Use Board of Appeals in DLCD v. Jefferson County reversed a Jefferson County decision approving a 60-unit subdivision development on approximately 160 acres of farm land.

In 2006 William Burk obtained waivers from the state and from Jefferson County to divide and develop a subdivision on his property, which he acquired in 1947. In January 2007, Burk applied for county approval of a 60-unit PUD on the property. on July 1, 2007, William Burk died. On August 1, the county board of commissioners issued a decision allowing the estate of William Burk to subdivide the property into 60 lots and build a house on each lot.

At LUBA Burk’s heirs argued that the goal-post statute at ORS 215.427(3) operates to “vest” the right to have the PUD application evaluated based on the “standards and criteria” that were in effect on the date the PUD application was submitted. DLCD countered that intervenors confused a change in the law with a change in the facts.

LUBA didn’t quite go the whole way with accepting DLCD’s argument, but got to pretty much the same place via a different route:

“[W]e conclude that in those circumstances where ORS 197.352 and ORS 215.427(3)(a) operate together, those statutes come into conflict and cannot both be given full effect.9 We perceive no way to reconcile them in any way that gives full effect to both. To resolve conflicts between statutes, courts apply the legislative presumption, at ORS 174.020(2) that the more specific statute prevails over the more general statute.”

LUBA also relied on a similar maxim of statutory construction:

“[W]here a conflict between two statutes cannot be reconciled, the later adopted statutes prevail over the earlier statute, by implied repeal or amendment.”

LUBA held that the goal post statute was more general than ORS 197.352 and that “the latter controls the earlier” and reversed the county’s decision.

Larry and Laura Luethe filed a Measure 37 claim in 2005, seeking to build a nine-lot subdivision off Northwest Skyline Boulevard under rules that existed when they acquired the property in 1973.

Judge Jerry Hodson of Multnomah County Circuit Court ruled in November that county and state land-use laws restricted the use of property and reduced its value, and awarded $750,000 in damages.

After Measure 49 took effect, attorneys for the state and county filed motions asking Hodson to dismiss the Luethe case. Hodson ruled Thursday that Measure 49 applied retroactively and made the Luethe’s case moot.

Ralph Bloemers, an attorney with CRAG law center in Portland, says the ruling means claimants need to stop “throwing good money after bad” and should proceed as allowed under Measure 49.

The state Land Conservation and Development Commission approved rules Thursday that initiate a new system of designating urban and rural reserves.  The new rules authorize an optional process to replace the current system of expanding the urban growth boundary every few years, but only in the Metro area. The rules implement SB 1011, which came out of the 2007 legislative session.

Both farmers and builders groups backed the new rules, farmers because the current planning process has resulted in a rolling urban growth boundary that has been detrimental to agriculture. Under the new system farm, forest, and other lands within rural reserves would be protected for 40-50 years.

The staff report explaining the new rules and the rules themselves are available here.

Breaking news: we heard today (Thursday Jan. 24) that the Oregon Supreme Court has denied to review the Court of Appeals’ decision in Phillips v. Polk County.

The Court’s decision in Phillips brought to a screeching halt the practice common around the state of allowing parcels that were already smaller than the minimum size to be further reduced using property line adjustments. The Court explained:

“[N]othing in the language of ORS 215.780 authorizes a land use decision that results in the creation of a new parcel of less than 80 acres in an EFU zone through a lot line adjustment based on the fact that the parcel was originally less than 80 acres.”

Property line adjustments have been widely used to reconfigure properties so as to, in effect, create rural residential subdivisions.

A legislative “fix” is in the works that would restore flexibility for property owners while greatly reducing if not eliminating the opportunity for abuse by property owners and exploitation by developers. Goal One and 1000 Friends have been working diligently to ensure that the “fix” doesn’t wipe out our gains.

Goal One staff attorney Jan Wilson represented petitioner Kathy Phillips. Congratulations Jan!

The Court of Appeals has released an important Measure 37 opinion in Frank v. DLCD & DAS. The petitioners were seeking review of DLCD’s resolution of their Measure 37 claim, arguing that they didn’t get enough.

The court dismissed the case as nonjusticable and moot:

“Measure 49 requires a new process for petitioner to retain the waiver allowed in the order under review or to obtain any different relief. Because Measure 49 demands a new process and a substitute order on petitioner’s desired relief, and because different substantive standards will be applied in that process, the current proceedings are no longer justiciable.”

The most important piece of the court’s reasoning that petitioners have no constitutionally protected property right in their Measure 37 claim:

“Petitioner’s asserted rights are linked to her allowed ORS 197.352 claim, that is, the state agencies’ decision not to apply various state land use regulations enacted after March 28, 1978. But that decision is not at issue in this review proceeding. Even assuming that petitioner has future rights that arise from the allowed ORS 197.352(8) waiver, those potential rights do not make the present and different controversy–whether petitioner was entitled to a broader waiver under ORS 197.352(8) than provided by the state–justiciable. Whatever interest petitioner has in the application of Measure 49 to her allowed Measure 37 claim would not be affected by our determination of the disputed meaning of ORS 197.352 in this case.”

The court concluded:

“With the exception of any vested rights to develop uses allowed by the agencies’ order, an issue not affected by this review proceeding, Measure 49 requires petitioner to refile under sections 6 or 7 of the Act in order to develop her rural property inconsistently with the current zoning. There is no reason for this court to issue an opinion on whether DAS and DLCD correctly applied ORS 197.352 to petitioner when that statute has changed, other laws control petitioner’s development rights, and those laws require a new application and administrative order.”